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EXHIBIT 10.136
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
THE ▇▇▇▇▇ BIBLE INSTITUTE
OF CHICAGO
AND
▇▇▇▇▇▇ BROADCASTING OF TAMPA,
LIMITED PARTNERSHIP
FOR
RADIO ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇,
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
SEPTEMBER 12, 1996
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TABLE OF CONTENTS
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SECTION 1 DEFINITIONS............................................................................................1
"Accounts Receivable"....................................................................................1
"Assets" ................................................................................................1
"Assumed Contracts"......................................................................................1
"Closing"................................................................................................2
"Closing Date"...........................................................................................2
"Consents"...............................................................................................2
"Contracts"..............................................................................................2
"Escrow Agent"...........................................................................................2
"Escrow Agreement".......................................................................................2
"Excluded Records".......................................................................................2
"FCC" ................................................................................................2
"FCC Consent"............................................................................................2
"FCC Licenses"...........................................................................................2
"Final Order"............................................................................................2
"HSR Act"................................................................................................3
"Intangibles"............................................................................................3
"Licenses"...............................................................................................3
"New Lease"..............................................................................................3
"Purchase Price".........................................................................................3
"Real Property"..........................................................................................3
"Tampa Tower Lease"......................................................................................3
"Tangible Personal Property".............................................................................3
"Time Brokerage Agreement"...............................................................................4
SECTION 2 PURCHASE AND SALE OF ASSETS............................................................................4
2.1 Agreement to Sell and Buy...........................................................................4
2.2 Excluded Assets.....................................................................................5
2.3 Purchase Price......................................................................................5
2.4 Payment of Purchase Price...........................................................................7
2.5 Assumption of Liabilities and Obligations...........................................................7
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER...............................................................8
3.1 Organization, Standing, and Authority...............................................................8
3.2 Authorization and Binding Obligation................................................................8
3.3 Absence of Conflicting Agreements...................................................................8
3.4 Governmental Licenses...............................................................................8
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3.5 Title to and Condition of Real Property.............................................................9
3.6 Title to and Condition of Tangible Personal Property................................................9
3.7 Contracts..........................................................................................10
3.8 Consents...........................................................................................10
3.9 Intangibles........................................................................................10
3.10 Insurance.........................................................................................11
3.11 Reports...........................................................................................11
3.12 Labor Relations...................................................................................11
3.13 Taxes.............................................................................................11
3.14 Claims and Legal Actions..........................................................................12
3.15 Environmental Matters.............................................................................12
3.16 Compliance with Laws..............................................................................13
3.17 Conduct of Business in Ordinary Course............................................................13
3.18 Transactions with Affiliates......................................................................14
3.19 Broker............................................................................................14
3.20 Full Disclosure...................................................................................14
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER...............................................................14
4.1 Organization, Standing, and Authority..............................................................14
4.2 Authorization and Binding Obligation...............................................................15
4.3 Absence of Conflicting Agreements..................................................................15
4.4 Closing Funds......................................................................................15
4.5 Broker.............................................................................................15
4.6 Qualifications.....................................................................................15
4.7 Full Disclosure....................................................................................15
SECTION 5 OPERATIONS OF THE STATION PRIOR TO CLOSING............................................................16
5.1 Generally..........................................................................................16
5.2 Compensation.......................................................................................16
5.3 Contracts..........................................................................................16
5.4 Disposition of Assets..............................................................................16
5.5 Encumbrances.......................................................................................16
5.6 Licenses...........................................................................................16
5.7 Rights.............................................................................................17
5.8 No Inconsistent Action.............................................................................17
5.9 Access to Information..............................................................................17
5.10 Maintenance of Assets.............................................................................17
5.11 Insurance.........................................................................................18
5.12 Consents..........................................................................................18
5.13 Books and Records.................................................................................18
5.14 Notification......................................................................................18
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5.15 Compliance with Laws..............................................................................18
5.16 Financing Leases..................................................................................18
5.17 Preservation of Business..........................................................................18
SECTION 6 SPECIAL COVENANTS AND AGREEMENTS......................................................................19
6.1 FCC Consent........................................................................................19
6.2 Control of the Station.............................................................................19
6.3 Risk of Loss.......................................................................................19
6.4 Confidentiality....................................................................................20
6.5 Environmental Audit................................................................................20
6.6 Engineering Study..................................................................................20
6.7 Cooperation........................................................................................20
6.8 Bulk Sales Law.....................................................................................21
6.9 Title Insurance and Surveys........................................................................21
6.10 [Reserved]........................................................................................21
6.11 Appraisal.........................................................................................21
6.12 HSR Act Filing....................................................................................22
6.13 Billboards........................................................................................22
6.14 Time Brokerage Option.............................................................................22
SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING..............................................23
7.1 Conditions to Obligations of Buyer.................................................................23
7.2 Conditions to Obligations of Seller................................................................24
SECTION 8 CLOSING AND CLOSING DELIVERIES........................................................................25
8.1 Closing............................................................................................25
8.2 Deliveries by Seller...............................................................................25
8.3 Deliveries by Buyer................................................................................26
SECTION 9 TERMINATION...........................................................................................27
9.1 Termination by Seller..............................................................................27
9.2 Termination by Buyer...............................................................................28
9.3 Rights on Termination..............................................................................29
9.4 Escrow Deposit.....................................................................................29
SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES.....................................................................29
10.1 Representations and Warranties....................................................................29
10.2 Indemnification by Seller.........................................................................30
10.3 Indemnification by Buyer..........................................................................30
10.4 Procedure for Indemnification.....................................................................31
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10.5 Specific Performance..............................................................................32
10.6 Attorneys' Fees...................................................................................32
SECTION 11 MISCELLANEOUS.........................................................................................32
11.1 Fees and Expenses.................................................................................32
11.2 [Reserved]........................................................................................33
11.3 Notices...........................................................................................33
11.4 Benefit and Binding Effect........................................................................33
11.5 Further Assurances................................................................................34
11.6 Governing Law.....................................................................................34
11.7 Headings..........................................................................................34
11.8 Gender and Number.................................................................................34
11.9 Entire Agreement..................................................................................34
11.10 Waiver of Compliance; Consents...................................................................34
11.11 Press Release....................................................................................35
11.12 Counterparts.....................................................................................35
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LIST OF SCHEDULES
Schedule 2.1 -- Disclosure Statement
Schedule 3.3 -- Consents
Schedule 3.4 -- Licenses
Schedule 3.5 -- Real Property
Schedule 3.6 -- Tangible Personal Property
Schedule 3.7 -- Contracts
Schedule 3.10 -- Insurance Policies
Schedule 3.18 -- Transactions with Affiliates
Schedule 8.2(g) -- Form of Opinions of Seller's Counsel
Schedule 8.3(d) -- Form of Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of the 12th day of September,
1996, by and between The ▇▇▇▇▇ Bible Institute of Chicago, an Illinois
not-for-profit corporation and a private, Christian educational institution
("Seller"), and ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, a Florida
limited partnership ("Buyer").
R E C I T A L S
A. Seller is the licensee of and owns and operates radio station
WKES-FM, St. Petersburg, Florida (the "Station"), pursuant to licenses issued by
the Federal Communications Commission ("FCC").
B. Seller desires to sell, and Buyer desires to buy, substantially all
the assets that are used or useful in the business or operations of the Station,
for the price and on the terms and conditions set forth in this Agreement.
A G R E E M E N T S
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Agreement, Buyer and Seller, intending to be bound
legally, agree as follows:
SECTION 1 DEFINITIONS
The following terms, as used in this Agreement, shall have the meanings
set forth in this Section:
"Accounts Receivable" means all donations and contributions to Seller,
all of Seller's underwriting receivables and the rights of Seller to payment for
program time run on the Station by Seller prior to the Closing Date; provided,
however, that Accounts Receivable shall not include any network compensation,
advertising or program revenues or other amounts payable to Buyer under the Time
Brokerage Agreement (as defined below).
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) all Contracts listed in Schedule 3.7 that
are specifically designated on Schedule 3.7 as Contracts that are to be assumed
by Buyer upon its purchase of the
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Station and (ii) the New Lease and any other Contracts entered into by Seller
between the date of this Agreement and the Closing Date that Buyer agrees in
writing to assume.
"Closing" means the consummation of the purchase and sale of the Assets
pursuant to this Agreement in accordance with the provisions of Section 8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer or
otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses, and
other agreements (including leases for personal or real property and employment
agreements), written or oral (including any amendments and other modifications
thereto) to which Seller is a party or which are binding upon Seller and which
relate to or affect the Assets or the business or operations of the Station, and
(i) which are in effect on the date of this Agreement or (ii) which are entered
into by Seller between the date of this Agreement and the Closing Date.
"Escrow Agent" means First Union National Bank of Florida.
"Escrow Agreement" means the Escrow Agreement dated as of the date
hereof among Buyer, Seller and the Escrow Agent.
"Excluded Records" means all financial books and records of Seller or
the Station and all books and records that Seller is required by law to retain,
that pertain to Seller's corporate organization, and that comprise Accounts
Receivable lists or records of contributors, donors or other supporters of
Seller or the Station.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to the
assignment of the FCC Licenses to Buyer as contemplated by this Agreement.
"FCC Licenses" means all Licenses issued by the FCC to Seller in
connection with the business or operations of the Station.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, annulled, or suspended, and with respect to which
no requests are pending for
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administrative or judicial review, reconsideration, appeal, or stay, and the
time for filing any such requests, and the time for the FCC to set aside the
action on its own motion, have expired.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Intangibles" means, other than the "WKES" call letters, all licenses,
permits, technical information (including all engineering studies and other
documents prepared by or for Seller in connection with the relocation of the
Station's auxiliary and primary antenna sites) and data, machinery and equipment
warranties, and other similar intangible property rights and interests (and any
goodwill associated with any of the foregoing) applied for, issued to, or owned
by Seller or under which Seller is licensed or franchised and which are used or
useful in the business and operations of the Station, together with any
additions thereto between the date of this Agreement and the Closing Date.
"Licenses" means all licenses, permits, and other authorizations issued
by the FCC, the Federal Aviation Administration, or any other federal, state, or
local governmental authorities to Seller in connection with the conduct of the
business or operations of the Station, together with any additions thereto
between the date of this Agreement and the Closing Date.
"New Lease" means a lease, or a binding option to enter into a lease,
(a) for a new primary transmission facility for the Station that (i) is at a
location and antenna height above ground level acceptable to Buyer and (ii)
conforms to applicable requirements of the FCC, the Federal Aviation
Administration and other governmental authorities, including, without
limitation, environmental and zoning agencies, and (b) that is otherwise in form
and substance acceptable to Buyer.
"Purchase Price" means the purchase price specified in Section 2.3.
"Real Property" means all real property and interests in real property
listed on Schedule 3.5, including all options, easements, licenses, rights to
access, and rights of way relating thereto, together with any additions thereto
between the date of this Agreement and the Closing Date.
"Tampa Tower Lease" means the Lease Agreement dated as of April 20,
1989, between Tampa Tower General Partnership and Seller.
"Tangible Personal Property" means all machinery, equipment, tools,
leasehold improvements, plant, inventory, spare parts, and other tangible
personal property listed on Schedule 3.6, together with any additions thereto
between the date of this Agreement and the Closing Date.
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"Time Brokerage Agreement" shall mean the Time Brokerage Agreement in
the form of Schedule 6.15 hereto to be entered into by Buyer and Seller subject
to the satisfaction of the conditions specified in Section 6.15.
SECTION 2 PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell, transfer, and deliver to
Buyer on the Closing Date, and Buyer agrees to purchase, all of the tangible and
intangible assets used or useful in connection with the conduct of the business
or operations of the Station, together with any additions thereto between the
date of this Agreement and the Closing Date, but excluding the assets described
in Section 2.2, free and clear of any claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges, or encumbrances of any nature
whatsoever (except for liens for current taxes not yet due and payable),
including the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles and all intangible assets of Seller
relating to the Station, other than the "WKES" call letters, that are not
specifically included within the Intangibles, including the goodwill of the
Station, if any;
(f) All of Seller's proprietary information, technical
information and data, machinery and equipment warranties, maps, computer discs
and tapes, plans, diagrams, blueprints, and schematics, including filings with
the FCC relating to the business and operation of the Station;
(g) All choses in action of Seller relating to the Assets,
including, without limitation, all choses in action arising from or relating to
the matter described in Schedule 2.1; and
(h) All books and records relating to the Assets or the
technical operation of the Station, including executed copies of the Assumed
Contracts, and all records required by the FCC to be kept by the Station.
2.2 Excluded Assets. The Assets shall exclude the following assets:
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(a) Seller's cash on hand as of the Closing and all other cash
in any of Seller's bank or savings accounts; any insurance policies, letters of
credit, or other similar items and cash surrender value in regard thereto; and
any stocks, bonds, certificates of deposit and similar investments;
(b) All Excluded Records;
(c) Any pension, profit-sharing, or employee benefit plans,
and any collective bargaining agreements;
(d) Any Contract that is not an Assumed Contract;
(e) The Accounts Receivable as of 11:59 p.m., St. Petersburg
time, on the day prior to the Closing Date;
(f) The "WKES" call letters; and
(g) All employees of the Station.
2.3 Purchase Price. The Purchase Price for the Assets shall be
THIRTY-FIVE MILLION THREE HUNDRED TWENTY-THREE THOUSAND DOLLARS ($35,323,000),
adjusted as provided below:
(a) Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of expenses, other than, in
the event the parties enter into the Time Brokerage Agreement, expenses for
which Buyer is obligated to reimburse Seller pursuant to the Time Brokerage
Agreement. All expenses arising from the operation of the Station, including
business and license fees, utility charges, real and personal property taxes and
assessments levied against the Assets, property and equipment rentals,
applicable copyright or other fees, sales and service charges, taxes (except for
taxes arising from the transfer of the Assets under this Agreement) and similar
prepaid and deferred items, shall be prorated between Buyer and Seller in
accordance with the principle that Seller shall be responsible for all expenses,
costs, and liabilities allocable to the period prior to the Closing Date
(subject to, in the event the parties enter into the Time Brokerage Agreement,
reimbursement by Buyer to the extent provided in the Time Brokerage Agreement),
and Buyer shall be responsible for all expenses, costs, and obligations
allocable to the period on and after the Closing Date. Notwithstanding the
preceding sentence, there shall be no adjustment for, and Seller shall remain
solely liable with respect to, (i) any Contracts not
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included in the Assumed Contracts and any other obligation or liability not
being assumed by Buyer in accordance with Section 2.5 and (ii) any commissions,
wages, bonuses, incentive programs, payroll taxes, vacation pay, sick leave,
severance benefits, or other obligations to Seller's employees, including any of
the foregoing arising by virtue of the Closing, all of which obligations shall
be discharged and satisfied in full by Seller at or prior to the Closing.
(b) Manner of Determining Adjustments. The Purchase Price,
taking into account the adjustments and prorations pursuant to Section 2.3(a),
will be determined finally in accordance with the following procedures:
(1) Seller shall prepare and deliver to Buyer not
later than five days before the Closing Date a preliminary settlement statement
which shall set forth Seller's good faith estimate of the adjustments to the
Purchase Price under Section 2.3(a). The preliminary settlement statement (A)
shall contain all information reasonably necessary to determine the adjustments
to the Purchase Price under Section 2.3(a), to the extent such adjustments can
be determined or estimated as of the date of the preliminary settlement
statement, and such other information as may be reasonably requested by Buyer,
and (B) shall be certified by Seller to be materially true and complete to the
best of Seller's knowledge as of the date thereof. Buyer and Seller shall use
their good faith efforts to agree upon the adjustments under Section 2.3(a)
hereof prior to the Closing. The Purchase Price payable at Closing under Section
2.3 shall be increased or decreased, as applicable, based on the adjustments set
forth in the preliminary settlement statement except that any adjustments set
forth in the preliminary settlement statement to which Buyer objects in good
faith shall be deemed omitted from such preliminary settlement statement and
shall instead be determined as part of the post-closing adjustments under this
Section 2.3(b).
(2) No later than 45 days after the Closing Date,
Buyer will deliver to Seller a statement setting forth Buyer's determination of
the Purchase Price as adjusted pursuant to Section 2.3(b). If Seller disputes
the amount of the Purchase Price determined by Buyer, it shall deliver to Buyer
within 45 days after its receipt of Buyer's statement a statement setting forth
its determination of the amount of the Purchase Price (the "Seller Statement").
If Seller notifies Buyer of its acceptance of Buyer's statement, or if Seller
fails to deliver its statement within the 45-day period specified in the
preceding sentence, Buyer's determination of the Purchase Price shall be
conclusive and binding on the parties as of the last day of the 45-day period.
(3) Buyer and Seller shall use good faith efforts to
resolve any dispute involving the determination of the Purchase Price. If the
parties are unable to resolve the dispute within 15 days following the delivery
of Seller's Statement, Buyer and Seller shall jointly designate an independent
certified public accountant, who shall be knowledgeable and experienced in
accounting for non-commercial radio broadcasting stations within forty-five days
following delivery of Seller's Statement, to resolve the dispute. If Seller and
Buyer fail to agree to the appointment of such certified public accountant
within said forty-five day period, either party may
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submit to the American Arbitration Association for the appointment of such
accountant under the commercial arbitration rules of the American Arbitration
Association. The accountant's resolution of the dispute shall be final and
binding on the parties, and a judgment may be entered thereon in any court of
competent jurisdiction. Any fees of such accountant shall be split equally
between the parties.
(4) If the Purchase Price as finally determined
pursuant to this Section 2.3(b) exceeds the Purchase Price paid by Buyer on the
Closing Date (the "Estimated Purchase Price"), Buyer shall pay to Seller, in
immediately available funds within five days after the date on which the
Purchase Price is finally determined pursuant to this Section 2.3(b), the
difference between the Purchase Price and the Estimated Purchase Price. If the
Purchase Price as finally determined pursuant to Section 2.3(b) is less than the
Estimated Purchase Price, Seller shall pay to Buyer, in immediately available
funds within five days after the date on which the Purchase Price is finally
determined pursuant to this Section 2.3(b), the difference between the Purchase
Price and the Estimated Purchase Price.
2.4 Payment of Purchase Price. The Purchase Price, as adjusted, shall
be paid by Buyer to Seller at Closing by wire transfer of same-day funds
pursuant to wire instructions which shall be delivered by Seller to Buyer at
least two (2) days prior to the Closing Date.
2.5 Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge, and perform all obligations
and liabilities of Seller under the Licenses and the Assumed Contracts insofar
as they relate to the time on and after the Closing Date, and arise out of
events related to Buyer's ownership of the Assets or its operation of the
Station on or after the Closing Date. Buyer shall not assume any other
obligations or liabilities of Seller, including (i) any obligations or
liabilities under any Contract not included in the Assumed Contracts, (ii) any
obligations or liabilities under the Assumed Contracts relating to the period
prior to the Closing Date, (iii) any claims or pending litigation or proceedings
relating to the operation of the Station prior to the Closing, (iv) any
obligations or liabilities arising under capitalized leases or other financing
agreements, (v) any obligations or liabilities arising under agreements entered
into other than in the ordinary course of business, (vi) any obligations or
liabilities of Seller under any employee pension, retirement, health and welfare
or other benefit plans or collective bargaining agreements, (vii) any obligation
to any employee of the Station for wages, severance benefits, vacation time, or
sick leave accrued prior to the Closing Date, and (viii) any obligations or
liabilities caused by, arising out of, or resulting from any action or omission
of Seller prior to the Closing, and all such obligations and liabilities shall
remain and be the obligations and liabilities solely of Seller.
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SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority. Seller is a not-for-profit
corporation duly organized, validly existing, and in good standing under the
laws of the State of Illinois and is duly qualified to conduct business as a
foreign not-for-profit corporation in the State of Florida. Seller has all
requisite power and authority (i) to own, lease, and use the Assets as now
owned, leased, and used, (ii) to conduct the business and operations of the
Station as now conducted, and (iii) to execute and deliver this Agreement, the
Escrow Agreement and the documents contemplated hereby and thereby, and to
perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by Seller hereunder and thereunder. Except as
disclosed in Schedule 2.1, Seller is not a participant in any joint venture or
partnership with any other person or entity with respect to any part of the
operations of the Station or any of the Assets.
3.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement and the Escrow Agreement by Seller have been duly
authorized by all necessary actions on the part of Seller. This Agreement and
the Escrow Agreement have been duly executed and delivered by Seller and
constitute the legal, valid, and binding obligations of Seller, enforceable
against it in accordance with their respective terms except as the
enforceability of this Agreement and the Escrow Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally,
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3 and making any filing required under the HSR
Act, the execution, delivery, and performance of this Agreement and the Escrow
Agreement and the documents contemplated hereby and thereby (with or without the
giving of notice, the lapse of time, or both): (i) do not require the consent of
any third party; (ii) will not conflict with any provision of the Articles of
Incorporation or Bylaws of Seller; (iii) will not conflict with, result in a
breach of, or constitute a default under, any law, judgment, order, ordinance,
injunction, decree, rule, regulation, or ruling of any court or governmental
instrumentality; (iv) except as described on Schedule 2.1, will not conflict
with, constitute grounds for termination of, result in a breach of, constitute a
default under, or accelerate or permit the acceleration of any performance
required by the terms of, any agreement, instrument, license, or permit to which
Seller is a party or by which Seller may be bound; and (v) will not create any
claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon any of the Assets.
3.4 Governmental Licenses. Schedule 3.4 includes a true and complete
list of the Licenses. Seller has delivered to Buyer true and complete copies of
the Licenses (including any amendments and other modifications thereto). The
Licenses have been validly issued, and Seller
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is the authorized legal holder thereof. The Licenses listed on Schedule 3.4
comprise all of the licenses, permits, and other authorizations required from
any governmental or regulatory authority for the lawful conduct of the business
and operations of the Station in the manner and to the full extent they are now
conducted, and none of the Licenses is subject to any restriction or condition
that would limit the full operation of the Station as now operated. The Licenses
are in full force and effect, and the conduct of the business and operations of
the Station is in accordance therewith. Seller has no reason to believe that any
of the Licenses would not be renewed by the FCC or other granting authority in
the ordinary course.
3.5 Title to and Condition of Real Property. Except for the License
described in Schedule 2.1 and Seller's leasehold interest in the Station's
studio and office facilities located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
Schedule 3.5 contains a complete and accurate description (including street
address, legal description, owner, and use and the location of all improvements
thereon) of all real property and real property interests, including leaseholds
and subleaseholds, purchase options, easements, rights-of-way and licenses, used
or useful in the business or operations of the Station. The Real Property does
not include any fee estates. With respect to each leasehold or subleasehold
interest included in the Real Property being conveyed under this Agreement,
except as disclosed on Schedule 2.1 and so long as Seller fulfills its
obligations under the lease therefor, Seller has enforceable rights to
nondisturbance and quiet enjoyment, and no third party holds any interest in the
leased premises with the right to foreclose upon Seller's leasehold or
subleasehold interest. All towers, guy anchors, and buildings and other
improvements included in the Assets are located entirely on the Real Property
listed in Schedule 3.5. All Real Property (including the improvements thereon)
(i) is in good condition and repair consistent with its present use, (ii) is
available for immediate use in the conduct of the business and operations of the
Station, and (iii) complies with all applicable building or zoning codes and the
regulations of any governmental authority having jurisdiction. Seller has full
legal and practical access to the Real Property.
3.6 Title to and Condition of Tangible Personal Property. Except for
the Transmission Equipment described in Schedule 2.1 and the tangible personal
property that is used or useful solely and exclusively in connection with the
operation of the Station's studio and office facilities located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, the Tangible Personal Property listed on Schedule
3.6 comprises all material items of tangible personal property necessary to
conduct the business and operations of the Station as now conducted. Except as
described in Schedule 3.6, Seller owns and has good title to each item of
Tangible Personal Property, and none of the Tangible Personal Property owned by
Seller is subject to any security interest, mortgage, pledge, conditional sales
agreement, or other lien or encumbrance, except for liens for current taxes not
yet due and payable. Each item of Tangible Personal Property is available for
immediate use in the business and operations of the Station. All items of
Tangible Personal Property (i) have been maintained in a manner consistent with
generally accepted standards of good engineering practice, and (ii) will permit
the Station and any auxiliary broadcast stations used in connection with the
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operation of the Station to operate in accordance with the terms of the FCC
Licenses and the rules and regulations of the FCC, and with all other applicable
federal, state, and local statutes, ordinances, rules, and regulations.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Contracts relating to or affecting, directly or indirectly, the Real Property
and the other Assets. Seller has delivered to Buyer true and complete copies of
all written Assumed Contracts, true and complete memoranda of all oral Assumed
Contracts (including any amendments and other modifications to such Assumed
Contracts). Other than the Contracts listed on Schedule 3.7, Seller requires no
contract, lease, or other agreement to enable it to continue the Station's
broadcast operations. All of the Assumed Contracts are in full force and effect,
and are valid, binding, and enforceable in accordance with their terms. There is
not under any Assumed Contract any default by any party thereto or any event
that, after notice or lapse of time or both, could constitute a default. Seller
is not aware of any intention by any party to any Assumed Contract (i) except as
disclosed on Schedule 2.1, to terminate such contract or amend the terms
thereof, (ii) to refuse to renew the Assumed Contract upon expiration of its
term, or (iii) to renew the Assumed Contract upon expiration only on terms and
conditions which are more onerous than those now existing. Except for the need
to obtain the Consents listed in Schedule 3.3, Seller has full legal power and
authority to assign its rights under the Assumed Contracts to Buyer in
accordance with this Agreement, and such assignment will not affect the
validity, enforceability, or continuation of any of the Assumed Contracts.
3.8 Consents. Except for the FCC Consent provided for in Section 6.1,
any filing required under the HSR Act and the other Consents described in
Schedule 3.3, no consent, approval, permit, or authorization of, or declaration
to or filing with any governmental or regulatory authority, or any other third
party is required (i) to consummate this Agreement and the transactions
contemplated hereby, (ii) to permit Seller to assign or transfer the Assets to
Buyer, or (iii) to enable Buyer to conduct the operations of the Station in
essentially the same manner as such operations are now conducted.
3.9 Intangibles. All Intangibles are valid and in good standing and
uncontested. Seller is not infringing upon or otherwise acting adversely to any
trademarks, trade names, service marks, service names, copyrights, patents,
patent applications, know-how, methods, or processes owned by any other person
or persons, and there is no claim or action pending, or to the knowledge of
Seller threatened, with respect thereto. Other than the "WKES" call letters, the
Intangibles comprise all intangible property interests necessary to conduct the
business and operations of the Station as now conducted.
3.10 Insurance. Schedule 3.10 is a true and complete list of all
insurance policies of Seller that insure any part of the Assets or the business
of the Station. All policies of insurance listed in Schedule 3.10 are in full
force and effect. The insurance policies listed in Schedule 3.10
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are adequate in amount with respect to, and for the full value (subject to
customary deductibles) of, the Assets, and insure the Assets and the business of
the Station against all customary and foreseeable risks. During the past three
years, no insurance policy of Seller on the Assets or the Station has been
canceled by the insurer and no application of Seller for insurance has been
rejected by any insurer.
3.11 Reports. All returns, reports, and statements that the Station is
currently required to file with the FCC or with any other governmental agency
have been filed, and all reporting requirements of the FCC and other
governmental authorities having jurisdiction over Seller and the Station have
been complied with. All of such returns, reports, and statements are
substantially complete and correct as filed.
3.12 Labor Relations. Seller is not a party to or subject to any
collective bargaining agreements with respect to the Station. Seller has
complied with all laws, rules, and regulations relating to the employment of
labor, including those related to wages, hours, collective bargaining,
occupational safety, discrimination, and the payment of social security and
other payroll related taxes, and it has not received any notice alleging that it
has failed to comply in any material respect with any such laws, rules, or
regulations. No controversies, disputes, or proceedings are pending or, to the
best of its knowledge, threatened, between it and any employee (singly or
collectively) of the Station. No labor union or other collective bargaining unit
represents or claims to represent any of the employees of the Station. To
Seller's knowledge, there is no union campaign being conducted to represent
employees of the Station or solicit cards from employees to authorize a union to
request a National Labor Relations Board certification election with respect to
any employees at the Station; and
3.13 Taxes. Seller has filed or caused to be filed all federal income
tax returns and all other federal, state, county, local, or city tax returns
which are required to be filed, and it has paid or caused to be paid all taxes
shown on those returns or on any tax assessment received by it to the extent
that such taxes have become due, or has set aside on its books adequate reserves
(segregated to the extent required by generally accepted accounting principles)
with respect thereto. There are no governmental investigations or other legal,
administrative, or tax proceedings pursuant to which Seller is or could be made
liable for any taxes, penalties, interest, or other charges, the liability for
which could extend to Buyer as transferee of the business of the Station, and no
event has occurred that could impose on Buyer any transferee liability for any
taxes, penalties, or interest due or to become due from Seller. Seller is not
required to file Florida state sales tax returns or pay Florida state sales tax.
3.14 Claims and Legal Actions. Except for any FCC rulemaking
proceedings generally affecting the broadcasting industry, there is no claim,
legal action, counterclaim, suit, arbitration, governmental investigation or
other legal, administrative, or tax proceeding, nor any order, decree or
judgment, in progress or pending, or to the knowledge of Seller threatened,
against or relating
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to Seller with respect to its ownership or operation of the Station or otherwise
relating to the Assets or the business or operations of the Station, nor does
Seller know or have reason to be aware of any basis for the same. In particular,
but without limiting the generality of the foregoing, there are no applications,
complaints or proceedings pending or, to the best of its knowledge, threatened
(i) before the FCC relating to the business or operations of the Station other
than rule making proceedings which affect the radio broadcasting industry
generally, (ii) before any federal or state agency relating to the business or
operations of the Station involving charges of illegal discrimination under any
federal or state employment laws or regulations, or (iii) before any federal,
state, or local agency relating to the business or operations of the Station
involving zoning issues under any federal, state, or local zoning law, rule, or
regulation.
3.15 Environmental Matters. With respect to the Real Property:
(a) Seller, and, to the best of Seller's knowledge without
inquiry or investigation, each other party on the Real Property, has complied in
all material respects with all laws, rules, and regulations of all federal,
state, and local governments (and all agencies thereof) concerning the
environment, public health and safety, and employee health and safety, and no
charge, complaint, action, suit, proceeding, hearing, investigation, claim,
demand, or notice has been filed or commenced against Seller in connection with
its operation of the Station alleging any failure to comply with any such law,
rule, or regulation;
(b) Seller has no liability relating to its operation of the
Station (and there is no basis related to the past or present operation of the
Station by Seller for any present or future charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand against Seller giving rise
to any such liability) under any law, rule, or regulation of any federal, state,
or local government (or agency thereof) concerning release or threatened release
of hazardous substances, public health and safety, or pollution or protection of
the environment;
(c) Seller has no liability relating to its operation of the
Station (and Seller has not handled or disposed of any substance, arranged for
the disposal of any substance, or owned or operated any property or facility in
any manner that could form the basis for any present or future charge,
complaint, action, suit, proceeding, hearing, investigation, claim, or demand
(under the common law or pursuant to any statute) against Seller giving rise to
any such liability) for damage to any site, location, or body of water (surface
of subsurface) or for illness or personal injury;
(d) Seller has no liability relating to its operation of the
Station (and there is no basis for any present or future charge, complaint,
action, suit, proceeding, hearing, investigation, claim, or demand against
Seller giving rise to any such liability) under any law, rule, or regulation of
any federal, state, or local government (or agency thereof) concerning employee
health and safety;
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(e) Seller has no liability relating to its operation of the
Station (and Seller has not exposed any employee to any substance or condition
that could form the basis for any present or future charge, complaint, action,
suit, proceeding, hearing, investigation, claim, or demand (under the common law
or pursuant to statute) against Seller giving rise to any such liability) for
any illness or personal injury to any employee;
(f) In connection with its operation of the Station, Seller
has obtained and been in compliance in all material respects with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules, and
timetables which are contained in, all federal, state, and local laws, rules,
and regulations (including all codes, plans, judgments, orders, decrees,
stipulations, injunctions, and charges thereunder) relating to public health and
safety, worker health and safety, and pollution or protection of the
environment, including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes into ambient air, surface water, ground
water, or lands or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials
or wastes; and
(g) No pollutant, contaminant, or chemical, industrial,
hazardous, or toxic material or waste has ever been manufactured, buried,
stored, spilled, leaked, discharged, emitted, or released by Seller in
connection with its operation of the Station or, to the best of Seller's
knowledge without inquiry or investigation, by any other party on the Real
Property.
3.16 Compliance with Laws. Seller has complied in all material respects
with the Licenses and all federal, state, and local laws, rules, regulations,
and ordinances applicable or relating to the ownership and operation of the
Station. Neither the ownership or use of the properties of the Station nor the
conduct of the business or operations of the Station conflicts with the rights
of any other person or entity.
3.17 Conduct of Business in Ordinary Course. Since December 31, 1995,
Seller has conducted the business and operations of the Station only in the
ordinary course and has not:
(a) Except as disclosed on Schedule 2.1, suffered any material
adverse change in the business, assets, or properties of the Station, including
any damage, destruction, or loss affecting any assets used or useful in the
conduct of the business of the Station;
(b) Made any sale, assignment, lease, or other transfer of any
of the Station's properties other than in the normal and usual course of
business with suitable replacements being obtained therefor;
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(c) Transferred or granted any right under, or entered into
any settlement regarding the breach or infringement of, any license, patent,
copyright, trademark, trade name, franchise, or similar right, or modified any
existing right relating to the Station; or
(d) Incurred any obligation or liability (fixed or contingent)
except obligations and liabilities incurred in the ordinary course of the
conduct of the business and operations of the Station.
3.18 Transactions with Affiliates. Except as disclosed on Schedule
3.18, Seller has not been involved in any business arrangement or relationship
relating to the Assets with any affiliate of Seller. As used in this paragraph,
"affiliate" has the meaning set forth in Rule 12b-2 promulgated under the
Securities and Exchange Act of 1934.
3.19 Broker. Neither Seller nor any person acting on Seller's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement, except for the
broker's commission payable by Seller to Media Services Group.
3.20 Full Disclosure. No representation or warranty made by Seller in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Seller pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
and required to make any statement made herein or therein not misleading.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing, and Authority. Buyer is a limited
partnership duly organized, validly existing, and in good standing under the
laws of the State of Florida. Buyer has all requisite power and authority to
execute and deliver this Agreement and the Escrow Agreement and the documents
contemplated hereby and thereby, and to perform and comply with all of the
terms, covenants, and conditions to be performed and complied with by Buyer
hereunder and thereunder.
4.2 Authorization and Binding Obligation. The execution, delivery, and
performance of this Agreement and the Escrow Agreement by Buyer have been duly
authorized by all necessary actions on the part of Buyer. This Agreement and the
Escrow Agreement have been duly executed and delivered by Buyer and constitute
the legal, valid, and binding obligations of Buyer, enforceable against Buyer in
accordance with their respective terms except as the enforceability of this
Agreement and the Escrow Agreement may be affected by bankruptcy, insolvency, or
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similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the Escrow Agreement and the documents contemplated hereby and thereby (with
or without the giving of notice, the lapse of time, or both): (i) do not require
the consent of any third party; (ii) will not conflict with the Certificate of
Limited Partnership or Limited Partnership Agreement of Buyer; (iii) will not
conflict with, result in a breach of, or constitute a default under, any law,
judgment, order, injunction, decree, rule, regulation, or ruling of any court or
governmental instrumentality; or (iv) will not conflict with, constitute grounds
for termination of, result in a breach of, constitute a default under, or
accelerate or permit the acceleration of any performance required by the terms
of, any agreement, instrument, license, or permit to which Buyer is a party or
by which Buyer may be bound, such that Buyer could not acquire or operate the
Assets.
4.4 Closing Funds. Funds necessary to consummate the transactions
contemplated by this Agreement are currently on deposit and are available for
the Closing.
4.5 Broker. Neither Buyer nor any person acting on Buyer's behalf has
incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement.
4.6 Qualifications. Buyer is legally, financially and otherwise
qualified to be the licensee of, acquire, own and operate the Station under the
Communications Act of 1934, as now in effect, and the rules, regulations and
policies of the FCC as now in effect. Buyer knows of no fact that would, under
existing law and the existing rules, regulations, policies and procedures of the
FCC disqualify Buyer as an assignee of the FCC Licenses or as the owner and
operator of the Station. Buyer shall not take any action that is inconsistent
with its obligations under this Agreement or that could hinder or delay the
consummation of the transactions contemplated by this Agreement.
4.7 Full Disclosure. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished or
to be furnished by Buyer pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
and required to make any statement made herein or therein not misleading.
SECTION 5 OPERATIONS OF THE STATION PRIOR TO CLOSING
5.1 Generally. Except for such changes in the current operation of the
Station as may be required as a result of the matter disclosed in Schedule 2.1,
Seller agrees that, between the date of this Agreement and the Closing Date,
Seller shall operate the Station diligently in the ordinary course of business
in accordance with its past practices (except where such conduct, in the event
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the parties enter into the Time Brokerage Agreement, has been expressly
delegated to Buyer pursuant to the terms of the Time Brokerage Agreement or
would conflict with the following covenants or with Seller's other obligations
under this Agreement), and in accordance with the other covenants in this
Section 5.
5.2 Compensation. Seller shall not increase the compensation, bonuses,
or other benefits payable or to be payable to any person employed in connection
with the conduct of the business or operations of the Station, except in
accordance with past practices.
5.3 Contracts. Except for the leases referred to in Sections 6.14(a)
and (b) hereof, Seller will not enter into any contract or commitment relating
to the Station or the Assets, or amend or terminate any Assumed Contract (or
waive any material right thereunder), or incur any obligation (including
obligations relating to the borrowing of money or the guaranteeing of
indebtedness) that will be binding on Buyer after Closing. Prior to the Closing
Date, Seller shall deliver to Buyer a list of all Contracts entered into between
the date of this Agreement and the Closing Date, together with copies of such
Contracts.
5.4 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Station or in connection with the
acquisition of replacement property of equivalent kind and value.
5.5 Encumbrances. Seller shall not create, assume or permit to exist
any claim, liability, mortgage, lien, pledge, condition, charge, or encumbrance
of any nature whatsoever upon the Assets, except for (i) liens disclosed on
Schedule 3.5 and Schedule 3.6, which shall be removed prior to the Closing Date,
(ii) liens for current taxes not yet due and payable, and (iii) mechanics' liens
and other similar liens, which shall be removed prior to the Closing Date.
5.6 Licenses. Seller shall not cause or permit, by any act or failure
to act, any of the Licenses to expire or to be revoked, suspended, or modified,
or take any action that could cause the FCC or any other governmental authority
to institute proceedings for the suspension, revocation, or adverse modification
of any of the Licenses. Seller shall not fail to prosecute with due diligence
any applications to any governmental authority in connection with the operation
of the Station.
5.7 Rights. Seller shall not waive any right relating to the Station or
any of the Assets.
5.8 No Inconsistent Action. Seller shall not take any action that is
inconsistent with its obligations under this Agreement or that could hinder or
delay the consummation of the transactions contemplated by this Agreement.
Without limiting the generality of the foregoing, Seller covenants that neither
it nor any of its directors, officers or agents will, (a) solicit, initiate
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or encourage the submission of any proposal or offer relating to any (i)
liquidation, dissolution or recapitalization, (ii) merger or consolidation,
(iii) acquisition or sale of securities, (iv) transfer or assignment of any FCC
License (v) sale, lease or disposition of substantially all of the assets of
Seller, or (vi) similar transaction or business combination, in each case
involving Seller or (b) participate in any discussions or negotiations
regarding, furnish any information with respect to, assist or participate in, or
facilitate in any other manner any effort or attempt by any party to do or seek
any of the foregoing. Seller shall notify Buyer as soon as practicable if any
party makes any proposal with respect to any of the foregoing. Notwithstanding
any other provision in this Agreement to the contrary, in the event that Seller
violates its obligations in this Section 5.8, Buyer shall have the right to seek
specific performance of Seller's obligations hereunder.
5.9 Access to Information. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
to the Assets and to all other properties, equipment, books and records relating
to the Station, other than the Excluded Records, for the purpose of audit and
inspection, including inspections incident to the environmental study described
in Section 6.5 and the engineering study described in Section 6.6.
5.10 Maintenance of Assets. Seller shall use its best efforts and take
all reasonable actions to maintain all of the Assets in good condition (ordinary
wear and tear excepted), and use, operate, and maintain all of the Assets in a
reasonable manner and in accordance with the terms of the FCC Licenses, all
rules and regulations of the FCC and generally accepted standards of good
engineering practice. Seller shall maintain inventories of spare parts and
expendable supplies at levels consistent with past practices. If any loss,
damage, impairment, confiscation, or condemnation of or to any of the Assets
occurs (other than, in the event the parties enter into the Time Brokerage
Agreement, a loss, damage or impairment resulting from actions taken by Buyer
pursuant to the Time Brokerage Agreement), Seller shall repair, replace, or
restore the Assets to their prior condition as represented in this Agreement as
soon thereafter as possible, and Seller shall use the proceeds of any claim
under any insurance policy solely to repair, replace, or restore any of the
Assets that are lost, damaged, impaired, or destroyed.
5.11 Insurance. Seller shall maintain the existing insurance policies
on the Station and the Assets.
5.12 Consents. Seller shall obtain the Consents and the estoppel
certificates described in Section 8.2(b), without any change in the terms or
conditions of any Contract or License that could be less advantageous to the
Station than those pertaining under the Contract or License as in effect on the
date of this Agreement. Seller shall promptly advise Buyer of any difficulties
experienced in obtaining any of the Consents and of any conditions proposed,
considered, or requested for any of the Consents. Upon Buyer's request, Seller
shall cooperate with Buyer and use it best efforts to obtain from the lessors
under each Real Property lease such estoppel
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certificates and consents to the collateral assignment of the lessee's interest
under each such lease as Buyer's lenders may request.
5.13 Books and Records. Seller shall maintain its books and records
relating to the Assets and the technical operation of the Station in accordance
with past practices.
5.14 Notification. Seller shall promptly notify Buyer in writing of any
unusual or material developments with respect to the business or operations of
the Station, and of any material change in any of the information contained in
Seller's representations and warranties contained in Section 3 of this
Agreement.
5.15 Compliance with Laws. Seller shall comply in all material respects
with all laws, rules, and regulations applicable or relating to the ownership
and operation of the Station.
5.16 Financing Leases. Seller will satisfy at or prior to Closing all
outstanding obligations under capital and financing leases with respect to any
of the Assets and obtain good title to the Assets leased by Seller pursuant to
those leases so that those Assets shall be transferred to Buyer at Closing free
of any interest of the lessors.
5.17 Preservation of Business. Except to the extent the operation and
organization of the Station has been delegated to Buyer pursuant to the Time
Brokerage Agreement, Seller shall use its best efforts to preserve the operation
and organization of the Station and use its best efforts to preserve the
Station's present relationships with suppliers and others having business
relations with it, to the end that the business and operations of the Station
shall be unimpaired at the Closing Date. The ordinary and customary operating
practices of the Station shall be maintained.
SECTION 6 SPECIAL COVENANTS AND AGREEMENTS
6.1 FCC Consent.
(a) The assignment of the FCC Licenses in connection with the
purchase and sale of the Assets pursuant to this Agreement shall be subject to
the prior consent and approval of the FCC; and
(b) Seller and Buyer shall promptly prepare an appropriate
application for the FCC Consent and shall file the application with the FCC on
the date that is 30 days following the execution of this Agreement. The parties
shall prosecute the application with all reasonable diligence and otherwise use
their best efforts to obtain a grant of the application as expeditiously as
practicable. Each party agrees to comply with any condition imposed on it by the
FCC Consent, except that no party shall be required to comply with a condition
if (1) the condition was imposed on it as the result of a circumstance the
existence of which does not constitute a breach
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by the party of any of its representations, warranties, or covenants under this
Agreement, and (2) compliance with the condition would have a material adverse
effect upon it. Buyer and Seller shall oppose any requests for reconsideration
or judicial review of the FCC Consent. If the Closing shall not have occurred
for any reason within the original effective period of the FCC Consent, and
neither party shall have terminated this Agreement under Section 9, the parties
shall jointly request an extension of the effective period of the FCC Consent.
No extension of the FCC Consent shall limit the exercise by either party of its
rights under Section 9.
6.2 Control of the Station. Prior to Closing, Buyer shall not, directly
or indirectly, control or attempt to control the operations of the Station; such
operations, including complete control and supervision of all of the Station
programs, employees, and policies, shall be the sole responsibility of Seller
until the Closing.
6.3 Risk of Loss.
(a) The risk of any loss, damage, impairment (other than, in
the event the parties enter into the Time Brokerage Agreement, a loss, damage or
impairment resulting from actions taken by Buyer pursuant to the Time Brokerage
Agreement), confiscation, or condemnation of any of the Assets from any cause
whatsoever shall be borne by Seller at all times prior to the Closing; and
(b) If any damage or destruction of the Assets or any other
event occurs which (i) causes the Station to cease broadcasting operations for a
period of three (3) or more days or (ii) prevents in any material respect signal
transmission by the Station in the normal and usual manner and Seller fails to
restore or replace the Assets so that normal and usual transmission is resumed
within seven days of the damage, destruction or other event, Buyer, in its sole
discretion, may (x) terminate this Agreement forthwith without any further
obligations hereunder upon written notice to Seller, in which event all funds
held by the Escrow Agent pursuant to the Escrow Agreement, including all
interest and other proceeds from the investment of such funds, shall be
immediately returned to Buyer, or (y) proceed to consummate the transaction
contemplated by this Agreement and complete the restoration and replacement of
the Assets after the Closing Date, in which event Seller shall deliver to Buyer
all insurance proceeds received in connection with such damage, destruction or
other event.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law,
including, without limitation, disclosure requirements of federal or state
securities laws and the rules and regulations of securities markets, each party
will keep confidential any information obtained from the other party in
connection with the transactions contemplated by this Agreement. If this
Agreement is terminated, each party will
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return to the other party all information obtained by the such party from the
other party in connection with the transactions contemplated by this Agreement.
6.5 Environmental Audit. Buyer may, at its option and expense, retain
an environmental consultant to be selected by Buyer to perform a Phase I
environmental survey of the properties of the Station. Buyer shall promptly
notify Seller if such survey discloses any material environmental hazard or
material possibility of future liability for environmental damages or clean-up
costs.
6.6 Engineering Study. Buyer may, at its option and expense, retain an
engineering firm to conduct a proof of performance study of the Station and to
prepare a report on the Station's compliance with customary engineering
practices and all applicable FCC rules, regulations, prescribed practices, and
technical standards. Buyer shall promptly notify Seller if such survey discloses
any material deficiencies in the operations or equipment of the Station.
6.7 Cooperation. Buyer and Seller shall cooperate fully with each other
and their respective counsel and accountants in connection with any actions
required to be taken as part of their respective obligations under this
Agreement, and Buyer and Seller shall execute such other documents as may be
necessary or desirable to the implementation and consummation of this Agreement,
and otherwise use their best efforts to consummate the transaction contemplated
hereby and to fulfill their obligations under this Agreement. Notwithstanding
the foregoing, Buyer shall have no obligation (i) to expend funds to obtain any
of the Consents or (ii) to agree to any adverse change in any License or Assumed
Contract to obtain a Consent required with respect thereto.
6.8 Bulk Sales Law. If applicable, the Bulk Sales law of the State of
Florida shall be complied with by Seller. Any loss, liability, obligation, or
cost suffered by Seller or Buyer as the result of the failure of Seller or Buyer
to comply with the provisions of any bulk sales law applicable to the transfer
of the Assets as contemplated by this Agreement shall be borne by Seller.
6.9 Title Insurance and Surveys.
(a) Title Insurance on Fee Property. With respect to each
parcel of Real Property, Buyer may obtain, at Buyer's expense, at or prior to
Closing, an ALTA Owner's Policy of Title Insurance Form B-1987 (or equivalent
policy acceptable to Buyer), issued by a title insurer satisfactory to Buyer, in
an amount equal to the fair market value of Buyer's interest in the property as
of the Closing and any improvements thereon (as reasonably determined by Buyer),
insuring Buyer's interest in such parcel as of the Closing, subject only to
liens or encumbrances expressly permitted by this Agreement;
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(b) General Requirements as to Title Insurance Policies. Each
title insurance policy obtained by Buyer pursuant to this Agreement shall (1)
insure title to the Real Property described in the policy and all recorded
easements benefitting such Real Property, (2) contain an "extended coverage
endorsement" insuring over the general exceptions customarily contained in title
policies, (3) contain an ALTA Zoning Endorsement 3.1 (or equivalent), (4)
contain an endorsement insuring that the Real Property described in the policy
is the same real estate shown in the survey delivered with respect to such
property, (5) contain an inflation endorsement, (6) contain a "contiguity"
endorsement with respect to any Real Property consisting of more than one record
parcel, and (7) not be subject to any survey exception or any defect or
encroachment disclosed by a survey delivered with respect to the property; and
(c) Surveys. With respect to each parcel of Real Property, as
to which a title insurance policy is procured pursuant to this Agreement, Buyer
will procure a current survey of the parcel, prepared by a licensed surveyor and
conforming to current ALTA Minimum Detail Requirements for Land Title Surveys,
disclosing the location of all improvements, easements, party walls, sidewalks,
roadways, utility lines, and other matters customarily shown on such surveys,
and showing access affirmatively to public streets and roads.
6.10 [Reserved].
6.11 Appraisal. Buyer and Seller agree to allocate the Purchase Price
for tax and recording purposes in accordance with an appraisal to be conducted
by an appraisal firm selected and paid for by Buyer with experience in the
valuation and appraisal of radio station assets.
6.12 HSR Act Filing. Seller and Buyer agree to (a) file, or cause to be
filed, with the U.S. Department of Justice ("DOJ") and Federal Trade Commission
("FTC") all filings, if any, which are required under the HSR Act in connection
with the transactions contemplated hereby or by the Time Brokerage Agreement
within ten (10) business days of the date of this Agreement; (b) submit to the
other party, prior to filing, their respective HSR Act filings to be made
hereunder, and to discuss with the other any comments the reviewing party may
have; (c) cooperate with each other in connection with such HSR Act filings,
which cooperation shall include furnishing the other with any information or
documents in such party's possession that may be reasonably required in
connection with such filings; (d) promptly file, after any request by the FTC or
DOJ and after appropriate negotiation with the FTC or DOJ of the scope of such
request, any information or documents requested by the FTC or DOJ; and (e)
furnish each other with any correspondence from or to, and notify each other of
any other communications with, the FTC or DOJ which relates to the transactions
contemplated hereunder, and to the extent practicable, to permit each other to
participate in any conferences with the FTC or DOJ.
6.13 Billboards. Commencing upon the earlier to occur of the effective
date of the Time Brokerage Agreement or the Closing Date, Buyer or an affiliate
of Buyer shall donate to Seller
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space on ten (10) billboard faces owned by Buyer or its affiliate and located in
Pinellas, Pasco or Hernando Counties, Florida, upon such terms and conditions,
other than the payment of rent, that are customarily applicable to such
transactions. The billboard locations in one or more of such counties shall be
subject to availability and shall be determined by Buyer or its affiliate in
their sole discretion. Seller shall be permitted to use each such billboard for
a period of 180 days commencing from the date each billboard is made available
to Seller.
6.14 Time Brokerage Option. Upon the satisfaction of each of the TBA
Option Conditions, as defined below, Seller may, at its option, deliver to Buyer
a written notice indicating Seller's intention to enter into the Time Brokerage
Agreement (the "TBA Option Notice"), whereupon Buyer and Seller shall execute
and deliver the Time Brokerage Agreement effective as of the day that is 30 days
following Buyer's receipt of the TBA Option Notice. Seller shall not be
permitted to deliver the TBA Option Notice until each of the following
conditions (the "TBA Option Conditions") shall have been satisfied:
(a) Seller shall have entered into one or more lease
agreements, in form and substance acceptable to Buyer, that grant Seller
uninterrupted access to (i) antenna space and related premises required for the
operation and maintenance, as currently operated and maintained, of the
Station's existing auxiliary antenna described in Section 2.0(a) of the Tampa
Tower Lease, and (ii) transmitter building space and related premises required
to operate and maintain, as currently operated and maintained, the Station's
transmitter;
(b) Seller shall have entered into the New Lease;
(c) the Station shall have commenced regular broadcast
operation without interruption at full authorized effective radiated power and
in accordance with generally accepted standards of good engineering practice
from, as applicable, the auxiliary antenna site specified in the Tampa Tower
Lease or the primary antenna site specified in any New Lease;
(d) Seller shall have delivered to Buyer estoppel certificates
from the lessors under the leases referred to in Sections 6.14(a) and (b) above;
and
(e) If applicable to the commencement of the transactions
contemplated by the Time Brokerage Agreement, the waiting period under the HSR
Act shall have expired without unresolved action by the DOJ or the FTC to
prevent such commencement.
SECTION 7 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at the
Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
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(a) Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time;
(b) Covenants and Conditions. Seller shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date;
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any adverse change in the terms or conditions of any
agreement or any governmental license, permit, or other authorization;
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Buyer of any conditions that need not be complied with
by Buyer under Section 6.1 hereof, Seller shall have complied with any
conditions imposed on it by the FCC Consent, and the FCC Consent shall have
become a Final Order;
(e) Governmental Authorizations. Seller shall be the holder of
all Licenses and there shall not have been any modification of any License,
other than a modification resulting from the matter described in Schedule 2.1,
that could have an adverse effect on the Station or the conduct of its business
and operations. No proceeding shall be pending the effect of which could be to
revoke, cancel, fail to renew, suspend, or modify adversely any License;
(f) Deliveries. Seller shall have made or stand willing to
make all the deliveries to Buyer set forth in Section 8.2;
(g) Adverse Change. Between the date of this Agreement and the
Closing Date, except, in the event the parties enter into the Time Brokerage
Agreement, as a result of actions taken by Buyer pursuant to the Time Brokerage
Agreement, there shall have been no material adverse change in the assets or
properties of the Station as presently utilized by Seller, including any damage,
destruction, or loss that could reasonably be expected to have a materially
adverse effect on the business or operations of the Station;
(h) HSR Act. The waiting period under the HSR Act shall have
expired without unresolved action by the DOJ or the FTC to prevent the Closing.
(i) Time Brokerage Agreement. In the event the parties shall
have entered into the Time Brokerage Agreement, Seller shall have performed in
all material respects its obligations thereunder.
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(j) Tower Site. As of the Closing Date, each of the TBA Option
Conditions shall have been satisfied, the leases referred to in Section 6.15(a)
and (b) hereof shall be in full force and effect and all approvals of state and
local governmental authorities, including, without limitation, environmental and
zoning agencies, required for the construction and operation of the tower and
related facilities described in the New Lease, shall have been obtained.
7.2 Conditions to Obligations of Seller. All obligations of Seller at
the Closing are subject at Seller's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time;
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date;
(c) Deliveries. Buyer shall have made or stand willing to make
all the deliveries set forth in Section 8.3; and
(d) FCC Consent. The FCC Consent shall have been granted
without the imposition on Seller of any conditions that need not be complied
with by Seller under Section 6.1 hereof and Buyer shall have complied with any
conditions imposed on it by the FCC Consent.
(e) HSR Act. The waiting period under the HSR Act shall have
expired without unresolved action by the DOJ or the FTC to prevent the Closing.
(f) Time Brokerage Agreement. In the event the parties shall
have entered into the Time Brokerage Agreement, Buyer shall have performed in
all material respects its obligations thereunder.
SECTION 8 CLOSING AND CLOSING DELIVERIES
8.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00 a.m.
on a date to be agreed upon by Buyer and Seller, that is (1) not earlier than
the FCC Consent is granted, and (2) not later than ten (10) business days
following the date upon which the FCC Consent has become a Final Order, subject
to the satisfaction or waiver of all of the other conditions precedent to the
holding of the Closing. If Buyer and Seller fail to agree upon the date for the
Closing pursuant
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to the preceding sentence prior to the fifth day after the date upon which the
FCC Consent has become a Final Order, the Closing shall take place on the tenth
business day after the date upon which the FCC Consent has become a Final Order.
Notwithstanding the foregoing, if the waiting period under the HSR Act shall not
have expired on or before the date that is the tenth business day after the date
on which the FCC Consent becomes a Final Order, the Closing shall take place at
10:00 a.m. on a date to be set by Buyer, on at least five days' written notice
to Seller, that is not earlier than the first business day and not later than
the tenth business day after the date such waiting period shall have expired.
(b) Closing Place. The Closing shall be held at the offices of
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, or any other place that is agreed upon by Buyer and Seller.
8.2 Deliveries by Seller. Prior to or on the Closing Date, Seller shall
deliver to Buyer the following, in form and substance reasonably satisfactory to
Buyer and its counsel:
(a) Transfer Documents. Duly executed warranty bills of sale,
motor vehicle titles, assignments, and other transfer documents which shall be
sufficient to vest good and marketable title to the Assets in the name of Buyer,
free and clear of all claims, liabilities, security interests, mortgages, liens,
pledges, conditions, charges or encumbrances, except for liens for current taxes
not yet due and payable;
(b) Estoppel Certificates. Estoppel certificates of the
lessors of all leasehold and subleasehold interests included in the Real
Property;
(c) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent;
(d) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Seller by its Vice President, certifying (1)
all representations and warranties of Seller contained in this Agreement are
true and complete in all material respects at and as of the Closing Date as
though made at and as of that date; and (2) that Seller has performed and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date;
(e) Tax, Lien, and Judgment Searches. Results of a search for
tax, lien, and judgment filings in the Secretary of State's records of the State
of Florida, as well as the records of those counties in Florida in which any of
the Assets are located, such searches having been made no earlier than fifteen
days prior to the Closing Date;
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(f) Licenses, Contracts, Business Records, Etc. Copies of all
Licenses, Assumed Contracts, blueprints, schematics, working drawings, plans,
projections, engineering records, and all available files and records relating
to the Assets or the technical operation of the Station;
(g) Opinions of Counsel. Opinions of Seller's counsel dated as
of the Closing Date, substantially in the form of Schedule 8.2(g) hereto;
(h) Lenders Certificates. Such certificates and confirmations
to Buyer's lenders as Buyer may reasonably request in connection with obtaining
financing for the performance of its payment obligations hereunder; and
(i) Certificates. Such other certificates and documents that
Seller is required to deliver pursuant to the terms hereof.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall
deliver to Seller the following, in form and substance reasonably satisfactory
to Seller and its counsel:
(a) Purchase Price. The Purchase Price as provided in Section
2.3(a);
(b) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform Seller's
obligations under the Licenses and Assumed Contracts insofar as they relate to
the time on and after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by its President or Secretary,
certifying (1) all representations and warranties of Buyer contained in this
Agreement are true and complete in all material respects at and as of the
Closing Date as though made at and as of that date, and (2) that Buyer has
performed and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date;
(d) Opinion of Counsel. An opinion of Buyer's counsel dated as
of the Closing Date, substantially in the form of Schedule 8.3(d) hereto; and
(e) Certificates. Such other certificates and documents that
Buyer is required to deliver pursuant to the terms hereof.
SECTION 9 TERMINATION
9.1 Termination by Seller. This Agreement may be terminated by Seller
and the purchase and sale of the Station abandoned, if Seller is not then in
material default, upon written notice to Buyer, upon the occurrence of any of
the following:
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(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Seller set
forth in this Agreement have not been satisfied or waived in writing by Seller;
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing;
(c) Upset Date. If the Closing shall not have occurred by
December 31, 1997;
(d) Breach. Without limiting Seller's rights under the other
provisions of this Section 9.1, if Buyer has failed to cure any material breach
of any of its representations, warranties, or covenants under this Agreement
within fifteen days after Buyer received written notice of such breach from
Seller; and
(e) Environmental Hazards. Buyer shall have notified Seller of
the matters described in Section 9.2(e) and the clean-up costs specified in such
notice shall exceed $10,000.
9.2 Termination by Buyer. This Agreement may be terminated by Buyer and
the purchase and sale of the Station abandoned, if Buyer is not then in material
default, upon written notice to Seller, upon the occurrence of any of the
following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer set
forth in this Agreement have not been satisfied or waived in writing by Buyer;
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing;
(c) Upset Date. If the Closing shall not have occurred by
December 31, 1997;
(d) Interruption of Service. If any event shall have occurred
that prevented signal transmission of the Station in the normal and usual manner
for a continuous period of three days (other than, if the parties enter into the
Time Brokerage Agreement, an event caused by Buyer as a result of actions taken
by Buyer under the Time Brokerage Agreement);
(e) Environmental Hazards. Buyer shall have notified Seller of
material environmental hazards or the material possibility of environmental
damages or clean-up costs, as indicated in the environmental study described in
Section 6.5, within thirty (30) days prior to the Closing Date, and the cause
thereof shall not have been remedied prior to the Closing Date;
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(f) Technical Deficiencies. Buyer shall have notified Seller
of material deficiencies in the operations or equipment of the Station, as
indicated in the engineering study described in Section 6.6, within thirty (30)
days prior to the Closing Date, and the cause thereof shall not have been
remedied prior to the Closing Date; and
(g) Breach. Without limiting Buyer's rights under the other
provisions of this Section 9.2, if Seller has failed to cure any material breach
of any of its representations, warranties, or covenants under this Agreement
within fifteen days after Seller received written notice of such breach from
Buyer.
9.3 Rights on Termination. If this Agreement is terminated pursuant to
Section 9.1 or Section 9.2 and neither party is in material breach of this
Agreement, the parties hereto shall not have any further liability to each other
with respect to the purchase and sale of the Assets. If this Agreement is
terminated by Seller due to Buyer's material breach of this Agreement, then the
payment to Seller of Three Million Dollars ($3,000,000) pursuant to Section 9.4
below shall be liquidated damages and shall constitute full payment and the
exclusive remedy for any damages suffered by Seller by reason of Buyer's
material breach of this Agreement. Seller and Buyer agree in advance that actual
damages would be difficult to ascertain and that the amount of Three Million
Dollars ($3,000,000) is a fair and equitable amount to reimburse Seller for
damages sustained due to Buyer's material breach of this Agreement. If this
Agreement is terminated by Buyer due to Seller's material breach of this
Agreement, Buyer shall have all rights and remedies available at law or equity.
9.4 Escrow Deposit. Buyer has deposited with the Escrow Agent the sum
of Three Million Dollars ($3,000,000) in accordance with the Escrow Agreement.
All such funds deposited with the Escrow Agent shall be held and disbursed in
accordance with the terms of the Escrow Agreement and the following provisions:
(a) At the Closing, all amounts held by the Escrow Agent
pursuant to the Escrow Agreement, including any interest or other proceeds from
the investment of funds held by the Escrow Agent, shall be disbursed to or at
the direction of Buyer;
(b) If this Agreement is terminated pursuant to Section 9.1 or
9.2 and Buyer is not in material breach of this Agreement, all amounts held by
the Escrow Agent pursuant to the Escrow Agreement, including any interest or
other proceeds from the investment of funds held by the Escrow Agent, shall be
disbursed to or at the direction of Buyer; and
(c) If this Agreement is terminated by Seller due to Buyer's
material breach of this Agreement, then all amounts held by the Escrow Agent
pursuant to the Escrow Agreement shall be disbursed to or at the direction of
Seller as liquidated damages under Section 9.3 above and any
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interest or other proceeds from the investment of funds held by the Escrow Agent
shall be disbursed by the Escrow Agent to or at the direction of Buyer.
SECTION 10 SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; CERTAIN REMEDIES
10.1 Representations and Warranties. All representations and warranties
contained in this Agreement shall be deemed continuing representations and
warranties and shall survive the Closing for a period of eighteen (18) months.
Any investigations by or on behalf of any party hereto shall not constitute a
waiver as to enforcement of any representation, warranty, or covenant contained
in this Agreement. No notice or information delivered by Seller shall affect
Buyer's right to rely on any representation or warranty made by Seller or
relieve Seller of any obligations under this Agreement as the result of a breach
of any of its representations and warranties.
10.2 Indemnification by Seller. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Buyer or any
information Buyer may have, Seller hereby agrees to indemnify and hold Buyer
harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any covenant
by Seller contained in this Agreement or in any certificate, document, or
instrument delivered to Buyer under this Agreement;
(b) Any and all obligations of Seller not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts;
(c) Any loss, liability, obligation, or cost resulting from
the failure of the parties to comply with the provisions of any bulk sales law
applicable to the transfer of the Assets;
(d) Except, in the event the parties enter into the Time
Brokerage Agreement, as a result of actions taken by Buyer pursuant to the Time
Brokerage Agreement, any and all losses, liabilities, or damages resulting from
the operation or ownership of the Station prior to the Closing, including any
liabilities arising under the Licenses or the Assumed Contracts which relate to
events occurring prior the Closing Date; and
(e) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
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10.3 Indemnification by Buyer. Notwithstanding the Closing, and
regardless of any investigation made at any time by or on behalf of Seller or
any information Seller may have, Buyer hereby agrees to indemnify and hold
Seller harmless against and with respect to, and shall reimburse Seller for:
(a) Any and all losses, liabilities, or damages resulting from
any untrue representation, breach of warranty, or nonfulfillment of any covenant
by Buyer contained in this Agreement or in any certificate, document, or
instrument delivered to Seller under this Agreement;
(b) Any and all obligations of Seller assumed by Buyer
pursuant to this Agreement;
(c) Any and all losses, liabilities, or damages resulting from
the operation or ownership of the Station on and after the Closing; and
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim. If
the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within five days after
written notice of such action, suit, or proceeding was given to Claimant;
(b) With respect to claims solely between the parties,
following receipt of notice from the Claimant of a claim, the Indemnifying Party
shall have thirty days to make such investigation of the claim as the
Indemnifying Party deems necessary or desirable. For the purposes of such
investigation, the Claimant agrees to make available to the Indemnifying Party
and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnifying Party
agree at or prior to the expiration of the thirty-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such claim, the
Indemnifying Party shall immediately pay to the Claimant the full amount of the
claim. If the Claimant and the Indemnifying Party do not agree within the
thirty-day period (or any mutually agreed upon extension thereof), the Claimant
may seek appropriate remedy at law or equity or under the arbitration provisions
of this Agreement, as applicable;
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(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party. If the Indemnifying Party elects to assume control of the defense of any
third-party claim, the Claimant shall have the right to participate in the
defense of such claim at its own expense. If the Indemnifying Party does not
elect to assume control or otherwise participate in the defense of any third
party claim, it shall be bound by the results obtained by the Claimant with
respect to such claim;
(d) If a claim, whether between the parties or by a third
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible; and
(e) The indemnifications rights provided in Sections 10.2 and
10.3 shall extend to the shareholders, directors, officers, employees, and
representatives of any Claimant although for the purpose of the procedures set
forth in this Section 10.4, any indemnification claims by such parties shall be
made by and through the Claimant.
10.5 Specific Performance. The parties recognize that if Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other remedies
that may be available, including money damages, to obtain specific performance
of the terms of this Agreement. If any action is brought by Buyer to enforce
this Agreement, Seller shall waive the defense that there is an adequate remedy
at law.
10.6 Attorneys' Fees. In the event of a default by either party which
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses.
SECTION 11 MISCELLANEOUS
11.1 Fees and Expenses. Any federal, state, or local sales or transfer
tax arising in connection with the conveyance of the Assets by Seller to Buyer
pursuant to this Agreement shall be paid by Seller. Buyer and Seller shall each
pay one-half of (a) the fees payable to the Escrow Agent, (b) the filing fee
required in connection with the application for the FCC Consent and (c) the
filing fee required by the FTC under the HSR Act. Except as otherwise provided
in this Agreement, each party shall pay its own expenses incurred in connection
with the authorization, preparation, execution, and performance of this
Agreement, including all fees and expenses of counsel, accountants, agents, and
representatives. Seller shall pay the broker's commission
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payable to Media Services Group, Inc. as a result of this transaction and each
party shall be responsible for all fees or commissions payable to any other
finder, broker, advisor, or similar person retained by or on behalf of such
party. Notwithstanding any provision herein or in the Time Brokerage Agreement
to the contrary, Seller shall pay, without reimbursement by Buyer, all costs and
expenses required in connection with the installation of the new auxiliary
antenna and the new auxiliary transmission line for the Station that are listed
on Schedule 3.6.
11.2 [Reserved].
11.3 Notices. All notices, demands, and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
delivered by personal delivery, or sent by commercial delivery service or
registered or certified mail, return receipt requested, (c) deemed to have been
given on the date of personal delivery or the date set forth in the records of
the delivery service or on the return receipt, and (d) addressed as follows:
If to Seller: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
The ▇▇▇▇▇ Bible Institute of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to Buyer: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.3.
11.4 Benefit and Binding Effect. Neither party hereto may
assign this Agreement without the prior written consent of the other party
hereto; provided, however, that Buyer may assign its
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rights and obligations under this Agreement, in whole or in part, to one or more
subsidiaries or commonly controlled affiliates of Buyer without seeking or
obtaining Seller's prior approval in which event Buyer shall have no further
obligation hereunder and Buyer may assign its rights and interests hereunder to
its lenders as collateral security for Buyer's obligations to such lenders
without seeking or obtaining Seller's prior approval. Upon any permitted
assignment by Buyer or Seller in accordance with this Section 11.4, all
references to"Buyer" herein shall be deemed to be references to Buyer's assignee
and all references to "Seller" herein shall be deemed to be references to
Seller's assignee, as the case may be. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.5 Further Assurances. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation and
consummation of this Agreement, including, in the case of Seller, any additional
bills of sale, deeds, or other transfer documents that, in the reasonable
opinion of Buyer, may be necessary to ensure, complete, and evidence the full
and effective transfer of the Assets to Buyer pursuant to this Agreement.
11.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
(WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
11.7 Headings. The headings in this Agreement are included for ease of
reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.
11.8 Gender and Number. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to include
any other gender, masculine, feminine, or neuter, and any other number, singular
or plural, as the context requires.
11.9 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
11.10 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to,
- 33 -
40
any subsequent or other failure. Whenever this Agreement requires or permits
consent by or on behalf of any party hereto, such consent shall be given in
writing in a manner consistent with the requirements for a waiver of compliance
as set forth in this Section 11.10.
11.11 Press Release. Neither party shall publish any press release,
make any other public announcement or otherwise communicate with any news media
concerning this Agreement or the transactions contemplated hereby or thereby
prior to the filing of the application for FCC Consent. Following such filing,
neither party shall publish any press release or make any other public
announcement or otherwise make such communications without the prior consent of
the other party, which consent shall not be unreasonably withheld or delayed;
provided, however, that nothing contained herein shall prevent either party from
(a) making such public announcements as may be required to comply with federal
or state securities laws or (b) promptly making all filings with governmental
authorities as may, in its judgment be required or advisable in connection with
the execution and delivery of this Agreement, the Time Brokerage Agreement or
the consummation of the transactions contemplated hereby.
11.12 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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41
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
THE ▇▇▇▇▇ BIBLE INSTITUTE
OF CHICAGO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROADCASTING OF TAMPA,
LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ Communications Florida, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
- 35 -
42
SCHEDULE 2.1
DISCLOSURE STATEMENT
Seller is a party to a Sales Agreement dated May 10, 1989 (the "Sales
Agreement"), with Jacor Broadcasting of Tampa Bay, Inc. ("Jacor"). Buyer has
received a copy of the Sales Agreement and is aware of the terms and conditions
contained therein. Pursuant to the Sales Agreement, Seller purchased a
one-quarter undivided interest in Jacor's primary antenna and transmission line
used in the operation of the Station's primary antenna system (collectively, the
"Transmission Equipment"). Under the Sales Agreement, Seller also holds a right
(the "License") to maintain its FM transmitter in Jacor's transmitter building.
Section 2(d) of the Sales Agreement provides that, under certain specified
circumstances and upon the satisfaction of certain specified conditions, Jacor
has the right to repurchase Seller's ownership interest in the Transmission
Equipment (a "Repurchase") upon thirty days' written notice following public
notice of acceptance for filing by the FCC of a Form 314, 315 or 301 filed by
Seller. Under Section 2(g), the License shall automatically terminate
simultaneously with the Repurchase. Jacor has advised Seller that Jacor intends
to exercise the Repurchase and terminate the License upon a sale by Seller of
substantially all of the assets of the Station to a purchaser who intends to
operate the Station on a commercial basis. Buyer acknowledges that Seller's
ability to assign the FCC "main station" License for the Station is subject to
Jacor's possible exercise of the Repurchase.
43
SCHEDULE 3.3
CONSENTS
1. Consent of Tampa Tower General Partnership with respect to the
Tampa Tower Lease.
2. Consent of Jacor Broadcasting of Tampa Bay, Inc. with respect
to the Sales Agreement; provided, however, that Buyer and
Seller acknowledge and agree that such Consent will not be
necessary if Jacor terminates the Sales Agreement as a result
of the matters described in Schedule 2.1.
44
SCHEDULE 3.4
LICENSES
Attached
45
SCHEDULE 3.5
REAL PROPERTY
1. Tampa Tower Lease (as defined in Section 1 hereto)
46
SCHEDULE 3.6
TANGIBLE PERSONAL PROPERTY
Attached
47
SCHEDULE 3.7
CONTRACTS
1. Tampa Tower Lease*
2. Jacor Sales Agreement (as defined on Schedule 2.1)*
-------------------
* The assignment and assumption of the Tampa Tower Lease and Jacor Sales
Agreement are subject to the matters described on Schedule 2.1 hereto.
48
SCHEDULE 3.10
INSURANCE POLICIES
Attached
49
SCHEDULE 3.18
TRANSACTIONS WITH AFFILIATES
None
50
SCHEDULE 8.2(G)
FORM OF OPINIONS OF SELLER'S COUNSEL
Attached
51
SCHEDULE 8.3(D)
FORM OF OPINION OF BUYER'S COUNSEL
Attached